Appeals Court Ruling on Transgender Rights: What It Means

In a case involving a former inmate who accused a Virginia prison of discrimination, a federal appeals court has held that the Americans with Disabilities Act (ADA) covers individuals with “gender dysphoria.”

The ruling expanded the legal consensus on the discrimination protections available to some transgender people. The U.S. Court of Appeals for the 4th Circuit held in a majority opinion that the ADA protects transgender people with gender dysphoria from discrimination on the basis of disability.

Not all transgender people experience dysphoria, but the decision is a significant milestone in case law as discrimination protections and medical rights for transgender people are being challenged across the country.

“This is a huge win. There is no principled reason to exclude transgender people from our federal civil rights laws,” Jennifer Levi, the Transgender Rights Project Director at GLBTQ Legal Advocates & Defenders (GLAD), said in a press release Tuesday.

“This opinion goes a long way toward removing social and cultural barriers that keep people with treatable, but misunderstood, medical conditions from being able to thrive.”

GLAD co-authored an amicus brief in the case with other LGBTQ and disability rights organizations.

The case, Kesha Williams v. Stacey Kincaid et al., centers predominantly on Kesha Williams’ housing in prison. Williams, a transgender woman, was originally incarcerated in women’s housing, but was quickly moved to men’s housing at the Fairfax County Adult Detention Center when officials learned that she was transgender.

Williams sued the sheriff of Fairfax County, Stacey A. Kincaid, a prison deputy, and a prison nurse, alleging that while she was held there, she “experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies.”

In one filing in support for a motion to dismiss, Kincaid argued that gender dysphoria was not covered under the ADA because “it is an identity disorder not resulting from physical impairments.”

The ADA, however, does not limit its general definition of disability to conditions resulting from physical injury or impairment: this has been true since its drafting, and ADA protections apply to people with a range of circumstances, including Americans with anxiety disorders like PTSD or panic disorder, intellectual disabilities, and personality disorders.

The claim was adopted by the district court, but the appeals court subsequently upheld Williams’ argument, holding that binary policies which classify inmates based solely on their genitalia, like those executed by Sheriff Kincaid, constitute gross negligence under Virginia law and contravene federal law under the Prison Rape Elimination Act.

 Changing Definitions

The ADA does not provide an exhaustive list of approved disabilities, and the primary limiter of the law’s definition is whether a physical or mental impairment “substantially limits” one or more of someone’s major life activities. If it does, it’s a disability under the law.

So what’s the root of the controversy? The statute does list a number of exclusions from the ADA’s definition, which played a key role in Kincaid’s argument.

Under § 12211(a), the drafters of the ADA intentionally excluded homosexuality and bisexuality from the bill’s language because sexuality is not considered an ‘impairment.’

In § 12211(b), without that caveat, the statute further excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.”

That phrase, “identity disorders not resulting from physical impairments,” is what was used in Williams v. Sheriff Kincaid to justify arguing for dismissal of Kesha Williams’ ADA claims. But here’s the sticking point: gender identity disorder is a diagnosis that preceded — and never included — gender dysphoria.

In 1990, the Diagnostics and Statistical Manuel of Mental Disorders (DSM) listed gender identity disorder and ultimately all transgender identity as a mental illness, defined by the incongruence between assigned sex and identity.  But as medical understanding of transgender people expanded, “gender identity disorder” was removed from the DSM by the American Psychiatric Association in 2013. In its place the APA added a diagnosis of “gender dysphoria.”

Gender dysphoria is by contrast defined as the “clinically significant distress” felt by someone who experiences an “incongruence between their gender identity and assigned sex.”

Not all trans people are dysphoric, and the 4th Circuit found that the APA’s decision to remove the obsolete disorder confirms that the diagnoses are distinct and no reasonable reading of the DSM could construe dysphoria as a kind of “gender identity disorder” as understood at the time of the ADA’s enactment.

The court further reminded all the parties that in 2008, Congress’ amendment to the ADA instructed courts to apply the statute broadly, intending to make it easier for people with disabilities to access protection under the ADA and stating that the definition of disability should be construed in favor of people calling for coverage “to the maximum extent permitted by the [ADA’s] terms.”

And so, the courts have moved to an understanding of gender dysphoria shaped by modern medical consensus and a wide interpretation of disability, focusing instead on the disabling symptoms of the distress felt by people who have it.

A Troubled History

Beyond clarifying the definitions at play and the court’s legal interpretation within the ADA, the circuit judges explain that the original enactment of § 12211(b) itself was affected by moral judgement and “discriminatory animus,” pointing to one quote from the late Sen. Jesse Helms (R-NC) during Senate debate around the ADA that conflated many groups whom he found objectionable.

Sen. Helms was a key dissenter to the ADA’s inclusions and fought hard for the exclusions now present in the statute.

“If this were a bill involving people in a wheelchair or those who have been injured in the war, that is one thing,” Helms said at the time.  “But how in the world did you get to the place that you did not even [exclude] transvestites?

“How did you get into this business of classifying people who are HIV positive, most of whom are drug addicts or homosexuals or bisexuals, as disabled?”

Helms said he was opposed to disability protections, particularly for people with HIV, on moral grounds centered around their identities.

“What I get out of all of this is here comes the U.S. Government telling the employer that he cannot set up any moral standards for his business by asking someone if he is HIV positive, even though 85 percent of those people are engaged in activities that most Americans find abhorrent,” he said.

Ultimately, the 4th Circuit grounded its decision on the “basic promise of equality . . . that animates the ADA.”

“We see no legitimate reason why Congress would intend to exclude from the ADA’s protections transgender people who suffer from gender dysphoria,” the appeals court judges wrote in their decision.

Also at play in Williams v. Kincaid is the Rehabilitation Act of 1973, which has gotten lesser coverage in this case in part because the ADA and Rehabilitation Act cover virtually the same disability discrimination protections on the federal level.

But the 4th Circuit’s holdings in this case apply to the Rehabilitation Act’s application as well, protecting people against discrimination in programs conducted by federal agencies or in programs where federal funding or employment are involved.

With the appeals court decision, the district court’s dismissal of Kesha William’s ADA claims has been reversed, and Williams will be able to move forward with her case against Kincaid.

The case will first return to lower court.

Audrey Nielsen is a TCR contributing writer.

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